NOW
THE MORNING AFTER the Supreme Court ruled in favor of Mike and Chantell Sackett—Pacific Legal Foundation clients who battled the Environmental Protection Agency (EPA) for 16 years over their half-acre property—NPR’s Morning Edition said the Sackett ruling seemed “different, more lasting” than other rulings.
“Generally, in all cases, the Supreme Court lets federal agencies decide how they want to interpret law,” an NPR correspondent explained. Not in Sackett, he said: This time, all nine Justices agreed that the EPA crossed the line when the agency tried to use the Clean Water Act to block housing on the Sacketts’ occasionally soggy plot of land.
NPR’s correspondent found it “alarming” that the Court ruled against the EPA. After all, he said, “agencies are where subject-matter experts are.” He interviewed Cara Horowitz, an environmental law expert at the University of California, Los Angeles. Horowitz was indignant about the Court’s decision.
“This Court is quite explicitly arrogating to itself the power to say what the law is, and taking discretion away from agencies,” she complained.
THEN
On February 24, 1803, Chief Justice John Marshall stood in the parlor of Stelle’s Hotel in Washington, DC, and read aloud the Supreme Court’s 9,300-word decision in Marbury v. Madison.
“It is emphatically the province and duty of the Judicial Department to say what the law is,” Chief Justice Marshall said.
Washington had been buzzing about the case for two years. The decision was not what anyone expected.
Two years earlier, in 1801, Thomas Jefferson had been elected president. It was the first American election in which the presidency changed hands from one party (John Adams’ Federalist Party) to another (Jefferson’s Democratic-Republican Party). Before leaving office, President Adams hastily nominated several judges and justices of the peace. One of those justices of the peace was a Maryland businessman named William Marbury.
Marshall himself had signed the commissions at the end of his short stint as President Adams’ secretary of state. The day before Jefferson’s inauguration, Marshall tasked his brother, James, with delivering the last-minute commissions. But James couldn’t carry all of them, so he left some behind in his brother’s office—including Marbury’s.
The day after the inauguration, President Jefferson discovered the undelivered commissions at the State Department. He instructed his new secretary of state, James Madison, not to deliver them. “If there is any principle of law never yet contradicted,” Jefferson later reasoned, “it is that delivery is one of the essentials to validity of the deed.”
William Marbury sued in December 1801. He wanted the Supreme Court to issue a writ of mandamus forcing Jefferson’s administration to deliver his commission.
This was a crucial moment for the young Supreme Court, and for Chief Justice Marshall in particular. Jefferson’s supporters were furious that the Justices, led by Adams’ former secretary of state, might overrule the new president. When the Supreme Court agreed to hear Marbury’s case, one Federalist-friendly newspaper accused the Court of taking “a bold stroke against the Executive authority of the government.” A senator from Georgia called it “the most daring attack.” Virginia’s governor described it as “a high-handed exertion of Judiciary power.”
And this was all just for agreeing to hear the case.
NOW
A RISING TIDE OF ANGER is calling for changes at the Supreme Court.
After the end of the Supreme Court term in June 2023, two law professors published an open letter to President Joe Biden, telling him he should start ignoring the Court’s decisions.
Attacks on the Court’s legitimacy have been ongoing since the Dobbs abortion decision last year—and they increased after the Court’s decisions on the Clean Water Act, affirmative action, and student loan forgiveness.
The Court “has blown through the guardrails courts are expected to observe,” The New York Times editorial board argued after Sackett.
The Washington Post’s Jennifer Rubin accused the Court of “undermining democracy to an extent we have not seen in nearly 100 years.”
Mark Joseph Stern said on Slate’s podcast that the Court “has given itself basically an infinite number of tools to override the words that Congress wrote.”
Congresswoman Ayanna Pressley told MSNBC the Justices are “overturn[ing] the will of the majority.”
When asked about the Court’s ruling on affirmative action, President Biden said, “This is not a normal Court.”
THEN
The Supreme Court didn’t have a dedicated courtroom in 1803.
The Justices usually heard cases and announced decisions from a small committee room in the Capitol Building. During the term, the Justices roomed together at Stelle’s, the hotel and boarding house across the street from the Capitol. Stelle’s was busy that February. One night the hotel parlor was filled by the Washington Dancing Assembly. On some days one of the guests, a popular traveling dentist, would treat patients in his room.
Justice Samuel Chase, nicknamed “Old Bacon Face,” suffered from painful gout. By mid-February he couldn’t walk across the street from Stelle’s to the Capitol anymore. It was a problem for Marshall: Two of the Court’s six Justices were already absent with illnesses, and without Chase, the Court wouldn’t have a quorum.
So the Chief Justice decided to start doing Supreme Court business from the parlor of Stelle’s Hotel.
Marshall was not a man who valued pomp and ceremony. He was the oldest of 15 children and had no formal schooling. While many early American judges wore red robes, mimicking the style worn in England, Marshall wore black.
As he stood in Stelle’s parlor on February 24, Marshall knew the decision he held in his hands—Marbury v. Madison—would cause a stir. It had been delayed after congressional debate over the role of the judiciary—sparked by the Court’s intent to hear Marbury’s case—resulted in a bill that suspended the Supreme Court term for a year. (One congressman asked, “Are the gentlemen afraid of the judges?”)
Marshall was largely quiet, unwilling to respond to criticism or speculation about how the Court would rule in Marbury. At a celebration of George Washington’s birthday on February 22, after someone toasted to “an independent judiciary,” Marshall rose and gave a pointed toast to “those few real patriots who love the people well enough to tell them the truth.”
NOW
As the Supreme Court announced its decisions in 2023, The New York Times published a feature comparing certain decisions with public polling, broken down by political affiliation. The feature seemed designed to further suspicions the Court was making political decisions.
“The fanatical MAGA right have captured the Supreme Court and achieved dangerous, regressive policies,” New York Senator Chuck Schumer told the Times.
“The right wing has outsourced legislating to the Supreme Court,” Connecticut Senator Chris Murphy said on MSNBC.
Some online commentators responded to Murphy by arguing that it was progressive Justices who inappropriately legislated from the bench throughout the 20th century. The current Court is just undoing those mistakes and reasserting the true role of the judiciary, the commentators argued—the power to say what the law is.
THEN
WHEN MARSHALL ANNOUNCED the Court’s unanimous Marbury v. Madison decision, he noted the “peculiar delicacy” of the case.
William Marbury had a right to his commission, Marshall said, and he should have a legal remedy. “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury,” Marshall wrote in the decision.
And yet the Court was not going to issue a writ of mandamus forcing Jefferson to honor Marbury’s commission.
Instead, the Court found that the law Marbury relied on to bring his case to the Supreme Court—Section 13 of the Judiciary Act of 1789—was unconstitutional. It granted the Supreme Court original jurisdiction in cases beyond what the Constitution allows.
For the Court, the Constitution is paramount, Marshall explained in the decision. If a law violates the Constitution, the Court cannot follow it or allow it to stand. The judicial branch says what the law is.
He concluded:
Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? … [T]he particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.
With a single decision, the Supreme Court simultaneously asserted the power of judicial review and demonstrated its own restraint. It hadn’t forced Jefferson to honor Marbury’s commission—even though the Justices clearly believed Marbury had a right to the post. It set aside part of a law—even though the law broadened the Court’s own jurisdiction.
“The partisan newspapers were not quite sure how to react to the judgment,” Cliff Sloan and David McKean write in The Great Decision. “The Supreme Court had found an act of Congress unconstitutional—but it had done so by limiting its own power.”
NOW
TWO HUNDRED AND TWENTY YEARS later, politicians and commentators are still grappling with the Supreme Court’s power to interpret the law.
For many on the Left, the fact that six Justices were appointed by Republican presidents is taken as proof the Court isn’t fair-minded. Any decision that runs counter to progressives’ agenda—on the Clean Water Act, affirmative action, and student loan forgiveness—is slammed as a politically motivated power grab from a radical institution.
When a law is vague—like the Clean Water Act—it is emphatically the role of the Supreme Court to “say what the law is.”
“Six radical Justices are imposing their extremist views on the entire country—against the will of the American people,” Senator Elizabeth Warren said. “Congress must protect our democracy from this rogue Court.”
And yet ironically, in virtually every case, it was the Court’s critics who wanted to imbue it with new, politicized power—the power to read into the law something absent in the Constitution in order to advance certain goals.
In the case of Sackett, as Justice Clarence Thomas said in his concurrence, the federal government “possesses no authority over navigable waters except that granted by the Constitution.” If the Court were to allow the EPA’s overbroad interpretation of the Clean Water Act to stand, “the only prudent move for any landowner in America would be to ask the Federal Government for permission before undertaking any kind of development,” Thomas wrote. That would be a far more radical reading of the law than what the Court majority ruled.
When a law is vague—like the Clean Water Act—it is emphatically the role of the Supreme Court to “say what the law is.” That’s not the radical fever-dream of a modern institution gone rogue; it’s the precedent set by Chief Justice John Marshall in Marbury and established beforehand by America’s founders, who relied on centuries of common law that came before them.
Alexander Hamilton wrote in 1788,
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.
That’s the Supreme Court’s mandate, whether people like its decisions or not. As Chief Justice John Roberts said in response to recent attacks on the Court,
You don’t want the political branches telling you what the law is. And you don’t want public opinion to be the guide of what the appropriate decision is. Yes, all of our opinions are open to criticism. In fact, our members do a great job of criticizing some opinions from time to time. But simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the Court.